Another College Football Trademark Dispute

About two years ago, the University of Southern California asserted its rights to use "USC" against University of South Carolina who wanted to use the those letters on its athletic uniforms.  Southern California prevailed and South Carolina cannot use those letters even though those letters are the initials of the school.

Now, the University of Alabama has been in a long battle with an artist named Daniel Moore.  Mr. Moore is an artist in Alabama who depicts scenes from the University of Alabama football games. The dispute revolves around Mr. Moore's use of Alabama's Crimson and White colors.  The Crimson Tide have spent an enormous amount of money in legal expenses against Mr. Moore.  Mr. Moore won the first round in the District Court which ruled that he had a First Amendment right to paint the scenes, but it did not allow him to use his paintings in other mediums (i.e. mugs, t-shirts, etc.).

Both sides appealed and are now awaiting a ruling from the 11th Circuit Court of Appeal.  This is not the first time that a District Court of Appeal had to decide an intellectual property issue between an artist and a sports team/person.  In 2003, Tiger Woods sued an artist to prevent him from selling prints derived from his painting of Tiger Woods winning the 1997 Masters.  That court, the 6th Circuit, essentially held that the First Amendment trumped Mr. Woods intellectual property rights.

Interestingly, Bear Bryant asked Mr. Moore to commemorate Mr. Bryant's bypassing the record of Amos Alonzo Stagg for coaching victories.  Several of Mr. Moore's paintings are on display at the Paul W. Bryant Museum on Alabama's campus.  Clearly, Mr. Moore is not only an artist, but he is a fan.

So, what is going on here?  Big money is.  College football has become such a huge moneymaker that the teams are doing everything they can to capitalize on and control the use of their logos, image, and colors. Should the 11th Circuit side with the Tide, it could lead to a chilling of news or magazine reporting of Colleges or games.  Could a newspaper print a photo from the game when reporting on the team?  Maybe not.  That seems like it would be gutting the First Amendment in favor of intellectual property rights.  Stay tuned. 

Amazingly, Lululemon Turned Yoga Apparel Into a Must Have Item

For various reasons, none of which really have to do with the quality of the product, I am not a huge fan of Lululemon ("Lulu") wear.  I prefer Lucy.  But, judging from the the Lulu to Lucy ratio at my gym alone, I think Lulu is the apparel of choice.  According to a recent Wall Street Journal article, Lulu has been growing at an exponential pace--posting nine quarters of a 30% increase in sales over the past three years.  Also, according to the article, Lulu does not use conventional marketing techniques to increase demand for its products.  Instead, Lulu uses good ol' fashion customer contact to create an aura of scarcity of their products in order to encourage the customers to keep their products flying off the shelves. Lulu's Chief Executive spends hours in stores observing customers, listening to their complaints and suggestions and using that information to change products or stores.

In addition, Lulu places its product folding areas near the fitting rooms in order to eavesdrop on customers and Lulu has a has a large chalkboard for customers to write their complaints.  The complaints are then relayed to headquarters. 

Lulu execs thing that the company's growth will slow down due to the fact that the brand grew so fast--at some point, it has to slow down.  However, in its most recent quarter growth softened from 29-16% which is still above the norms of the industry.  Lulu creates a sense of scarcity for products in order to sell its product at full price.  New colors and seasonal items can expect to be in a store only 3-12 weeks in order to keep the stores "fresh."  The constant changeover also keeps Lulu customers coming back often to get the "latest and greatest."  Moreover, Lulu has a very strict return policy.  They definitely are not Nordstrom in that regard. 

True Religion Goes After Chinese Counterfeiters

The saga continues.  True Religion jeans maker just obtained a $864 million judgment against online Chinese counterfeiters.  About 280 Chinese websites using domain names like truereligion4cheap.com, were selling counterfeit goods and infringing on True Religions' trademarks.  Not surprisingly, the Chinese companies did not appear in court.  As such, the New York Federal Court issued a default judgment for the $864 million amount, as well as ordered that the companies shut down the infringing websites, or any other websites that they created in the future to infringe upon True Religion's marks or to sell counterfeit True Religion products. 

Of course, the trick for True Religion will be to collect on the judgment.  This is probably simply more of an ongoing problem with Chinese companies who are paid by American companies to make their goods because the labor costs are cheaper in China.  Those Chinese companies then take the information provided by the American companies to make counterfeit goods.  Kudos to True Religion for standing up for their rights.

Now, if only they made jeans for us soccer player types!

Nissan is Bringing Back the Datsun Brand

A long time ago, I wrote an article for the local Chamber of Commerce publication discussing how Silver Oak Winery had such a strong brand for its Cabernet that it did not want to use it for its Merlot.  The article can be found here:  http://www.mcclimanlawfirm.com/pdf/June.2004-ICC%20Article.pdf 

Recently, Nissan has done something similar with its Datsun brand.  For those of you who are old enough to remember the Datsun 240, 260, and 280Z or the Datsun 510, you may remember the seemingly strange decision by Nissan to phase out the Datsun brand.  Indeed, even now several auto makers have a multitude of lines of brands (Toyota/Lexus, Cadillac/Chevrolet/GMC/Buick, Ford/Lincoln, etc.).  Even Nissan reversed course and began selling its luxury cars under the Infinity brand just a few years after it phased out the Datsun brand.

Well, now after over 30 years in hibernation (since 1981), the Datsun brand is coming back.  Albeit, Nissan is limiting the Datsun brand to developing markets because the Datsun vehicles will be small, inexpensive cars made to appeal to those markets.  Nissan certainly does not want its no frills vehicles tarnishing or lessening the reputation of the Nissan name.  Now, for those of you who may pine for the 240-280Z, you will be sad to hear that Nissan does not plan to bring back those cars any time soon. 

Just another example of how one's own marketing strategies or branding can come full circle.  It is always a good idea to evaluate your brands to ensure that they are as strong as a Cabernet.  

A Lawsuit Claims that Wiz Khalifa Stole "Black and Yellow"

One of my favorite songs to spin to was a remix of Wiz Khalifa's song, "Black and Yellow."  Now, according to a lawsuit filed by Max Gregory Warren, the song was not Khalifa's but Warren's.  Warren claims that he wrote a song entitled "Pink and Yellow," in November, 2007.  In February, 2008, he obtained a copyright registration for the song.  Warren seeks over $ 2 million in damages.

An early question in the lawsuit is whether Warren still owns the copyright for his song.  Usually, songwriters sign over any of their copyright rights when they sign with a recording label.  After that, the question will turn to whether the songs are actually substantially similar enough to warrant a finding of infringement.  Having heard both songs, there are some similarities.  Are there enough similarities?  Only a judge and jury will be able to tell us that.

Dog Owner Must Take Down Billboard Depicting Dog Dressed As Ellen

Sometimes I think that intellectual property attorneys have no sense of humor.  A lawyer for a billboard company made a dog owner trying to get her dog on the Ellen DeGeneres show take down her billboard depicting her dog dressed like Ellen.  The billboard attorney claims that the Ellen DeGeneres show asked to have the billboard taken down, but representatives for the show said they did not know about the sign.  Another interesting twist is that some billboard salesmen recommended that the dog owner dress her dog as Ellen rather than Elvis--her initial plan was the Elvis idea.  Based on their recommendation that an Ellen dog would more likely succeed in getting on Ms. DeGeneres' show, she changed her plan. 

It would be one thing if Ms. DeGeneres wanted the sign taken down.  And, yes, the billboard company may be held contributorily liable for infringement of Ms. DeGeneres' name and likeness, but it seems to me that Ms. DeGeneres should be the one to make that call.  Who knows? Maybe Ms. DeGeneres appreciates the free publicity and thinks the sign is funny rather than offensive?

Holy Copyrights, Batman! The Batmobile is Copyrightable!

DC Comics sued the owner of Gotham Garage over the look of the Batmobile.  Apparently, Gotham Garage creates replica Batmobiles to comic book fans with disposable cash.  DC Comics and its parent company, Warner Brothers, sued Gotham Garage over these replicas.  DC Comics and Warner Brothers argues that the replicas violate their copyrights and trademarks. 

In a preliminary ruling, a Federal judge said that the design elements of the car are not functional, and therefore, may be the subject of copyright protection.  Now, that DC and Warner have overcome this preliminary obstacle, they must now convince the judge that they own a valid copyright in the design to the Batmobile.  That is, of course, if Gotham Garage still puts up a fight.  Presumably, DC and Warner have a bigger war chest than Gotham Garage. 

Tune again for an update . . . Same Bat-time, same Bat-channel . . .